Ross, Herrod J. v. The State of Texas--Appeal from 182nd District Court of Harris County

Affirmed and Memorandum Opinion filed May 1, 2003

Affirmedand Memorandum Opinion filed May 1, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00413-CR

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HERROD J. ROSS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 886,097

M E M O R A N D U M O P I N I O N

Appellant Herrod J. Ross was convicted of the felony offense of possession of a controlled substance, namely cocaine, in an amount less than one gram. Tex. Health & Safety Code Ann. '' 481.102(3)(D) and 481.115(b) (Vernon Supp. 2003). Asserting improper search and seizure, he appeals the trial court=s denial of his motion to suppress certain evidence. We affirm.

FACTUAL AND PROCEDURAL HISTORY

On August 23, 2001, three Houston police officers were on routine patrol in an area known for narcotic activity and observed a fourteen-year-old female violating curfew, without adult supervision, in a crowd of older people. The juvenile was detained and found to be in possession of a crack pipe with white residue. She admitted she had recently been in Room 216 of a nearby motel, the Crosstimbers Inn, smoking crack cocaine with an older man.

Based on this information, one of the officers went to Room 216 of the Crosstimbers Inn. He knocked on the door and, after a few minutes, observed appellant answering the knock. A white flakey residue resembling crack cocaine could be observed around appellant=s lips and mouth areas.

When appellant saw the officer, he threw three small rock-like substances of what appeared to be cocaine on the floor of the motel room. The rocks landed approximately six inches from the door.

At this time, the officer asked appellant to step out of the room. Together with a second officer, the officer secured appellant and entered appellant=s room to make sure no one else was present. The officers preserved and secured the evidence on the floor. The rocks later tested positive for cocaine. This appeal arises from the trial court=s denial of appellant=s motion to suppress the cocaine.

SOLE ISSUE ON APPEAL

In his sole point of error, appellant contends the trial court erred in denying his motion to suppress evidence recovered pursuant to the police officers= warrantless entry of his motel room. Appellant argues that because he did not give permission to search the room and because no exigent circumstances existed to justify a warrantless seizure, admission of the evidence seized by the police was improper.

STANDARD OF REVIEW

The standard of review of a trial court=s ruling on a motion to suppress is abuse of discretion. Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Curry v. State, 965 S.W.2d 32, 33 (Tex. App.CHouston [1st Dist.] 1998, no pet.). The appellate court shall independently review a trial court=s determination of reasonable suspicion and probable cause, because this requires the application of law to facts. Ornelas v. United States, 517 U.S. 690, 697 (1996); Guzman v. State, 955 S.W.2d 85, 87B88 (Tex. Crim. App. 1997).

The appellate court shall give great weight to the trial court=s determination of historical facts that the record supports, especially when the fact findings are based on credibility and demeanor. Id. at 89. The amount of deference reviewing courts afford trial courts= rulings on Amixed questions of law and fact@ (such as the issue of probable cause), however, is often determined by which judicial actor is in a better position to decide the issue. Id.

Absent specific historical findings of fact, the appellate court reviews the evidence in the light most favorable to the trial court=s ruling. Id. at 327B28.[1] A trial court=s ruling must be upheld if supported by any legal theory. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

DISCUSSION

Appellant argues on appeal that the trial court erred in failing to suppress the cocaine found in appellant=s hotel room. He asserts the search was improper because it was warrantless, undertaken without permission, and lacked probable cause. Appellant=s argument fails for two reasons.

1. The cocaine was lawfully seized under the plain view doctrine.

A police officer may approach a citizen without probable cause or reasonable suspicion to ask questions or to request a search and, so long as the person remains free to disregard the officer=s questions and go about his business, there is no detention or intrusion upon the citizen=s liberty or privacy right implicating the Fourth Amendment. See Johnson v. State, 912 S.W.2d 227, 235 (Tex. Crim. App. 1995). Indeed, an officer may approach the front door of a residence, knock on the door, and seek to speak with those inside. See Cornealius v. State, 900 S.W.2d 731, 734 (Tex. Crim. App. 1995); see also Katz v. United States, 389 U.S. 347, 35188 S. Ct. 507 (1967) (what a person knowingly exposes to the public, even in his own home, is not a subject of Fourth Amendment protection); see also Rodriguez v. State, 653 S.W.2d 305, 307 (Tex. Crim. App. 1983) ( Nothing in our Constitutions prevents a police officer from addressing questions to citizens on the street; it follows that nothing would prevent him from knocking politely on any closed door. ). An officer may also approach the door of a hotel or motel room. Joseph v. State, 3 S.W.3d 627, 634 (Tex. App.CHouston [14th Dist.] 1999, no pet.) ( [W]hile an individual has a right to privacy in a hotel room . . . a person=s expectation of privacy is not violated when a police officer knocks on a door while investigating the possible commission of an offense. ).

Although a search conducted without a warrant is per se unreasonable, seizing contraband in plain view does not offend the Fourth Amendment because the seizure of property in plain view involves no invasion of privacy and is presumptively reasonable. Walter v. State, 28 S.W.3d 538, 541 (Tex. Crim. App. 2000).[2] Law enforcement personnel may seize items in plain view if (1) law enforcement officials have a right to be where they are; and (2) it is immediately apparent to them that they have evidence before them, i.e., probable cause to associate the property with criminal activity. Id.; Ramos v. State, 934 S.W.2d 358, 365 (Tex. Crim. App. 1996).

Here, the evidence presented at appellant=s suppression hearing supports a finding that the cocaine was lawfully seized under the plain view doctrine. First, police were lawfully on the premises when they knocked on appellant=s motel room door; second, police had probable cause to suspect appellant was in possession of cocaine when they saw (1) white flakes around appellant=s mouth, and (2) appellant held, and then threw to the floorCin the officer=s presenceCthree rocks that, in the officer=s experience, resembled cocaine. See id.; Nichols v. State, 886 S.W.2d 324, 326 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d) (officer may rely on training and experience to draw inferences); Tex. Crim. Code Proc. Ann ' 14.01(b)(Vernon 1977).

Because the police had a right to be outside appellant=s motel room door and because it was immediately apparent to police they had contraband before them in plain view, the officers were authorized to collect and seize the evidence they reasonably believed to be associated with appellant=s crime. See Joseph v. State, 807 S.W.2d 303, 307 (Tex. Crim. App. 1991); Nichols, 886 S.W.2d at 325B26.

Thus, the trial court was correct in finding seizure of the cocaine to be lawful. See Ramos, 934 S.W.2d at 365; Bower, 769 S.W.2d at 896B97; Rodriguez, 653 S.W.2d at 307.

2. The cocaine was lawfully seized as a result of a search incident to arrest.

Under Article 14.01 of the Texas Code of Criminal Procedure, a peace officer may arrest a person without a warrant if that person commits an offense in the presence or view of the peace officer. Tex. Crim. Proc. Code Ann. ' 14.01 (b) (Vernon 1997); Stull v. State, 772 S.W.2d 449, 452 (Tex. Crim. App. 1989); Gonzales v. State, 638 S.W.2d 41, 44 (Tex. App.CHouston [1st Dist.] 1982, pet. ref=d).

Once a police officer has made a lawful arrest, a search incident to that arrest is also lawful. Chimel v. California, 395 U.S. 752, 762B63, 89 S. Ct. 2034, 2040 (1969); Williams v. State, 726 S.W.2d 99, 101 (Tex. Crim. App. 1986). Indeed, an arresting officer may search the area within the immediate control of the person arrested, meaning the area from which he might gain possession of a weapon or destroy evidence. Chimel, 395 U.S. at 762B63; Jones v. State, 568 S.W.2d 847, 856 (Tex. Crim. App. 1978). It is beyond dispute that if a controlled substance is found as a result of a search incident to arrest, it is not suppressed. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999).

Here, an officer personally observed appellant in possession of three rocks that he believed to be cocaine. Under subsection 481.115(b) of the Texas Health and Safety Code, it is unlawful to possess cocaine. Tex. Health & Safety Code Ann. '' 481.115(b) and 481.102(3)(D). Appellant=s arrest, therefore, was lawful.

Because appellant was lawfully arrested, officers could conduct a search of the area within appellant=s immediate control. Chimel, 395 U.S. at 762B63. Seizure of the cocaine, therefore, was also lawful. U.S. Const. amend. IV.

Accordingly, we overrule appellant=s sole point of error and affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed May 1, 2003.

Panel consists of Justices Anderson, Seymore, and Guzman.

Do Not PublishCTex. R. App. P. 47.2(b).

[1] Appellant did not file a written motion to suppress, nor does the record include a written order denying the motion. The record does contain appellant=s verbal motion, however, as well as hearing testimony by Officer Newman and an oral ruling by the trial court.

[2] The Supreme Court has held there is no legitimate expectation of privacy in an object readily observable by officers from a lawful vantage point. Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130 (1993).